THE PROGRESS OF LAW.

It is related by Herodotus that after the deposition of the usurper who seized the throne of Cambyses, King of Persia, the three leaders of the successful movement debated as to the form of a permanent government for that country. Otanes, who contended for a democracy, finding himself in the minority, proposed to yield his preferences to the other two on condition that neither Megabyzus nor Darius should reign over him or any of his posterity, which, being assented to, he made no further opposition to the establishment of a monarchy, and the historian adds:

At the present period this is the only family in Persia which retains its liberty, for all that is required of them is not to transgress the laws of the country." (Herodotus, Beloe's translation, Book 3, p. 165.)

This conception of liberty under law, usually regarded as the product of northern independence of character, and by many as peculiarly an Anglo-Saxon inheritance, thus appears to be of much greater antiquity, and although often obscured, sometimes for prolonged periods, it has ever recurred as the highest ideal of civilized human society.

Herodotus does not explain to us in what respect the liberty guaranteed to Otanes and his descendants differed from that of the other inhabitants of Persia, for it will be observed he considers that the family of Otanes enjoyed liberty because all that was required of them was that they should not transgress the laws of the country; but as he does state that the first act of Darius, after he was proclaimed king, was to divide Persia into twenty provinces, and to fix an amount of annual tribute which each was to pay to him, it would seem that the historian meant to indicate a distinction between government and law and to imply that while subject to the law, the favored family was relieved from the burdens.of government

Mr. James C. Cartes Car his work on "Law and its Origin," maintains:

tha while.Legislation is a command of the Sovereign, the unwritten Law, is not a command at all; that it is not a dictate of Force, but an emanation from: Order; that it is that form of conduct which social action necessarily exhibits, something which men can neither enact nor repeal, and which advances and becomes perfect pari passu with the advance and improvement of society" (pp. 344-5).

Mr. Carter was a profound student of the English common law, and a strong believer in the value of customary or common law as opposed to statute law, considering that those customary rules of conduct which are the result of the moral consciousness and progressive thought of a people afford a better working basis for the government of a civilized state than do rules of conduct prescribed by legislative authority. It is the function of the judges, he says:

"to watchfully observe the developing moral thought, and catch the indications of improvement in customary conduct, and enlarge and refine correspondingly the legal rules. In this way, step by step, the great fabrics of common law and equity law have been built up without the aid of legislation, and the process is still going on "(p. 329).

Yet he recognized the necessity for the employment of legislative action, or what he calls "the conscious agency of society," in the improvement of the law in its application to the constantly developing and increasingly complex forms of modern existence, insisting, however, that the sole function both of law and of legislation is "to secure to each individual the utmost liberty which he can enjoy consistently with the preservation of the like liberty to all others," adding that every abridgment of liberty demands an excuse, and that its only good excuse is the necessity of preserving it (p. 337).

It is the acknowledged duty of all good citizens to obey the law, be that law written or unwritten. The unwritten law, representing as it does a generally prevailing public conception of right action, must necessarily command the readiest obedience; statutory laws too frequently embody the ill-considered view of a moment; the expression of a temporary emotion, or the successful determination of a portion of the community to impose their will upon the remainder. The sound growth and development of the written law must follow and make more specific and more readily enforcible the principles of unwritten law, or it becomes an instrument of dissatisfaction and even of oppression. Yet no progress in the improvement of laws is realized through either evasion of or organized opposition to the laws of a self-governing people. As Washington said in his farewell address:

"The very idea of the power and the right of the people to establish government presupposes the duty of every individual, to obey' the established government.

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"All obstructions to the execution of the laws, all corabinations and associations under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle and of fatal tendency. ***

"However combinations or associations of the above description may now and then answer popular ends, they are likely in the course of time and things to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reigns of government, destroying afterwards the very engines which have lifted them to unjust dominion." (Messages and Papers, Vol. I, p. 218.)

The history of every civilized state presents many points of resemblance with that of every other. Primitive communities are bound

together more or less loosely, dependent upon the need of union for common defence against some external enemy. As civilization progresses a necessity arises for rules to govern the action of the individuals in the community towards each other, more than to protect the group against the aggressions of other groups; and as communities become more populous, and civilization more complex, rules of conduct must needs be increasingly minute and specific; but the fundamental principle guiding all successful civilization must be to preserve in as large a measure as is consistent with the welfare of the whole freedom of action in the individual. In monarchical countries this freedom is menaced more from the head of the state than from other individuals in It. Under democratic governments, the individual requires more protection against other individuals or groups of individuals than from the government; yet the abuse of monarchical power has often resulted in the same injury to the welfare of individuals which is occasioned by abuse of the power which under democratic institutions individuals or groups of individuals may acquire over others.

Queen Elizabeth of England, between the sixteenth and forty-third years of her reign, partly for the purpose of raising revenue, and partly to reward her favorite, granted a very large number of patents conferring upon their holders the exclusive privilege or monopoly for designated periods of time to manufacture, sell, or deal in specified articles of commerce. The injury to the community caused by these special privileges became so great as finally to produce a most remarkable and spontaneous outbreak among the people both in and out of parliament, which led to a complete and absolute disavowal by the Queen of any intention to afflict her subjects, the cancellation of the greater part of these patents, and the submission to the judgment of the courts of law of the validity of the remainder. The odious character of these monopolies in the view of the English people of that day is vividly depicted in the debates of the day. The list of the objects of the mphoplies was truly appalling. They embraced the exclusive right to dear in such articles as iron, powder, cards, leather, cloth, ashes, vinegar, sea coals, steel brushes, saltpetre, and many others. One Dr. Bennet, during a discussion parliament is recorded as saying:

"In respect of a grievance out of the City for which I come, I think my self bound to speak that now which I had not intended to speak before; I mean a Monopoly of Salt. It is an old Proverb Sal sapit omnia; Fire and Water are not more necessary. But for other Monopolies of cards (at which word Sir Walter Raleigh blusht), Dice, Starch and the like, they are (because Monopolies) I must confess very hurtful, though not all alike hurtful. I know there is a great difference in them; And I think if the abuses in this Monopoly of Salt were particularized, this would walk in the fore rank."

He was followed by another member who severely criticised the monopoly in tin. This brought Sir Walter Raleigh to his feet. He could have contented himself with blushes concerning cards, but the attack on the Tin Monopoly compelled him to speak. The arguments he resorted to in its defence have become familiar to later generations. "When the Tinn is taken out of the Mine, and melted and refined," he said, "then is every piece containing one hundred weight sealed with the Duke's Seal. Now I will tell you, that before the granting of my Patent, whether Tinn were but of seventeen shillings and so upward to fifty shillings a hundred, yet the Poor Workmen never had above two shillings the week, finding themselves: But since my Patent, whosoever will work, may; and buy Tinn at what price soever, they have four shillings a week truly paid. There is no Poor that will work there, but may, and have that wages. Notwithstanding," he declared, evidently perceiving that the argument fell upon deaf ears, "if all others may be repealed, I will give my consent as freely as to the cancelling of this, as any Member of this House." (D'Ewes, Journals of the Parliaments, pp. 645-6.)

Elizabeth was no less shrewd than Raleigh in perceiving the temper of the time, and with a clear perception that the public conscience was against her, she disclaimed all purpose of afflicting her subjects, declared she had acted upon bad advice, and authorized her minister, Cecil, to declare to the House that:

"There are no Patents now of force, which shall not presently be revoked; for what Patent soever is granted, there shall be left to the overthrow of that Patent, a Liberty agreeable to the Law. There is no Patent if it be Malum in se, but the Queen was ill apprized in her Grant. But all to the generality be unacceptable. I take it, there is no Patent whereof the Execution hath not been injurious. Would that they had never been granted. I hope there shall never be more, (All the house said Amen.)" (id., p. 652). Therefore, declared Cecil:

“there shall be a Proclamation general throughout the Realm to notify her Majesties resolution in this behalf. And because you may eat your meat more favourly than you have done, every man shall have Salt as good cheap as he can either buy it or make it, freely without danger of that Patent, which shall be presently revoked. * * * And they that have weak Stomachs, for their satisfaction, shall have Vinegar and Alegar, and the like set at liberty. Train Oyl shall go the same way; Oyl of Blubber shall march in equal rank; Brushes and Bottles endure the like Judgment. * * * Those that desire to go sprucely in their Ruffs may at less charge than accustomed obtain their wish; for the Patent for Starch, which hath so much been prosecuted, shall now be repealed" (p. 652).

In the year following these debates in the great case of the monopolies, it was held by the Court of Queen's Bench that a patent granted by Queen Elizabeth, to Ralph Bowes, Esq., conferring on him the sole and exclusive right to make and sell playing cards within the realm for a term of years, was utterly void for two reasons: (1) that it was a monopoly and against common law; (2) that it was against divers acts of parliament. It was against common law because:

1. All trades, as well mechanical as others, which prevent idleness (the bane of the commonwealth) and exercise men and youth in labour, for the maintenance of themselves and their families, and for the increase of their substance, to serve the Queen when occasion shall require, are profitable for the commonwealth, and therefore the grant to the plaintiff to have the sole making of them is against the common law, and the benefit and liberty of the subject."

"2. The sole trade of any mechanical artifice, or any other monopoly, is not only a damage and prejudice to those who exercise the same trade, but also to all other subjects, for the end of all these monopolies is for the private gain of the patentees; and although provisions and cautions are added to moderate them, yet ✶✶✶ it is mere folly to think that there is any measure in mischief or wickedness: and, therefore, there are three inseparable incidents to every monopoly against the commonwealth, sc. I. That the price of the same commodity will be raised, for he who has the sole selling of any commodity, may and will make the price as he pleases. *** The 2d incident to a monopoly is, that after the monopoly granted, the commodity is not so good and merchantable as it was before: for the patentee having the sole trade, regards only his private benefit, and not the common wealth. 3 It tends to the impoverishment of divers artificers and others, who before, by the labour of their hands in their art or trade, had maintained themselves and their families, who now will of necessity be constrained to live in idleness and beggary ***

"3. The Queen was deceived in her grant; for the Queen, as by the preamble appears, intended it to be for the weal public, and it will be employed for the private gain of the patentee, and for the prejudice. of the weal public; ...." ((II Coke's Reports, 84b.)

The principles of this great decision have been recognized as immutable in all later discussions of the subject in the law of England or America. All subsequent statutes against monopolies in England and America depend for their reason on the principles so clearly and so quaintly set forth in this judgment. In the development of our modern civilization, with our boundless natural wealth and our unexampled facilities of transportation and communication, by individual effort working through the machinery of compact organization, the people of the United States twenty years ago found themselves confronted with